Syria Insta-Symposium: Jennifer Trahan-The Legality of a U.S. Strike on Syria

by Jennifer Trahan

[Jennifer Trahan is an Associate Clinical Professor, NYU Center for Global Affairs, chair of the American Branch of the International Law Association International Criminal Court Committee, and member of the American Bar Association 2010 ICC Task Force]

As the U.S. prepares, with or without coalition partners, for a potential military strike against the Bashar al-Assad regime in Syria , it is important to consider the legality of such a strike as a matter of domestic and international law. At the international level, with a U.N. Security Council resolution, such action would be clearly legal. Without such a resolution, the law is in somewhat of a grey area, but the legality is supportable.

The “responsibility to protect” doctrine, developed in recent years, makes clear that the international communitydoes have a responsibility to protect a people in peril from grave atrocity crimes. Recent formulations of the “responsibility to protect” doctrine suggest that large scale war crimes and/or crimes against humanity — acknowledge to have occurred in Syria — are such atrocity crimes.

While the clearest path to utilizing forceful intervention under the “responsibility to protect” framework is through Security Council authorization (as happened in the case of Libya ), tragedies such as genocides in Rwandan and Darfur dramatically pose the question: what should the world do when the votes are not there at the Security Council level? Should one simply allow massive humanitarian tragedies to be inflicted by a regime on its own people absent a Security Council resolution? Does one really need to wait for recalcitrant China and Russia (permanent members of the Security Council possessing veto power) to do the right thing?

A legitimate argument exists that even when the Security Council does not authorize humanitarian intervention, it is arguably still permissible. As formulated by the International Commission on Intervention and State Sovereignty (ICISS) in 2001, while the decision to intervene should be made by the Security Council, if the Council “fails to discharge its responsibility to protect in conscience-shocking situations crying out for action, concerned states may not rule out other means to meet the gravity and urgency of that situation.”

Clearly, intervention through a coalition of partners, such as a NATO coalition (as occurred with Kosovo) lends greater legitimacy (although even that is technically not sufficient under a strict reading of the U.N. Charter). But when a broad coalition or regional actor is unavailable, does that mean that countries must stand by and let mass atrocities, such as the use of chemical weapons (a necessarily indiscriminate weapon), occur? The answer is arguably no.

While the U.N. Charter only clearly permits intervention in two scenarios: U.N. Security Council authorized action and article 51 individual or collective self-defense, the Charter also contains a clear commitment to human rights. Committing mass atrocity crimes is about the clearest violation of human rights that one can get. Thus, while humanitarian intervention is not clearly legal under the U.N. Charter, it is not clearly illegal either. We are in a grey area where the demands of morality and those of international law are not yet fully harmonized in a clear manner. Should thousands more die while we wait for international law (which can take decades to form) to catch up to where it should be?

We might have not reached this point had Assad regime members (as well as others actors in Syria ) felt much sooner that the international community was scrutinizing their actions. This could have happened through a Security Council referral of the situation to the International Criminal Court. Unfortunately, that has not happened, and any chance to deter crimes through a referral has been squandered.

While the U.S. contemplates a strike, important criteria for consideration include those formulated by the Secretary-General’s High-Level Panel on Threats, Challenges and Change. Namely, last resort:“Has every non-military option for meeting the threat in question been explored . . . ?” Proportional means:“Are the scale, duration and intensity of the proposed military action the minimum necessary to meet the threat in question”? Balance of consequences:“Is there a reasonable chance of the military action being successful in meeting the threat in question, with the consequences of action not likely to be worse than the consequences of inaction?”

The Administration is facing a difficult choice as the U.S. contemplates moving ahead, hopefully along with coalition partners such as France . Yet, a flexible reading of international law does not demand that countries stand impotent in the face of over 100,000 fatalities and the use of chemical weapons.

19 Responses

Jennifer: the R2P argument is mostly a humanitarian intervention argument, which Deborah (post below) and others do not accept. States were unable to agree on unilateral use of force in response to a state’s violation of R2P (at the time of the 2005 G.A. Res.).
A textually sound and policy-serving claim would be that Article 2(4) facially only prohibits three types of armed force and that in the special circumstance of an ongoing belligerency in Syria and substantial outside recognition of the opposition as the legitimate representative of the Syrian people a use of force in response to chemical weapon attacks on civilians is not “against” the terrritorial “integrity” of Syria, “against” the “political independence” of the Syrian people, or in any other manner, on balance and in view of relevant purposes ofthe Charter (e.g., peace, security, self-determination of peoples, and human rights — and R2P) that is inconsistent with the purposes of the Charter. The text of a treaty is quite relevant to its interpretation and nothing in Article 2(4) prohibits all uses of armed force.
Additionally, the opposition, as the legitimate representative of the Syrian people, could publicly consent to a responsive use of force by the U.S. and also consent to measures of collective self-defense (as in the case of Libya even though there was a S.C. authorization in 2011) — (see http://ssrn.com/abstract=2272291 ). This may be the best claim, esp. in combination with the textually sound and policy-serving application of 2(4) in the special circumstances presented.
Further, NATO authorized the use of force in Kosovo and Article 52 of the Charter expressly allows “regional action” when the S.C. is veto-deadlocked and connot control “enforcement action” through Article 53, etc.
I am pleased to see that you are open to policy-serving points of view. Some seem to ignore the complexities involved re: Arts. 2(4), 51, and 52-53.

8.31.2013
at 11:38 am EST Jordan

You cannot cite the High Level Panel report in support of an unauthorized intervention. Paragraph 203 of that Report says:
“We endorse the emerging norm that there is a collective international responsibility to protect, exercisable by the Security Council authorizing military intervention as a last resort, in the event of genocide and other largescale killing, ethnic cleansing or serious violations of international humanitarian law which sovereign Governments have proved powerless or unwilling to prevent.”

8.31.2013
at 12:32 pm EST Guillermo

just up at saltlaw.org/blog – http://www.saltlaw.org/blog/2013/08/31/an-obscene-american-leadership-double-standard/
Best
Ben

8.31.2013
at 1:50 pm EST Benjim Davis

As usual in international law, the US might maybe legitimately argue that the intervention in this case is legal if it accepted that other countries would have the right to do the same in similar circumstances, mutatis mutandis. So for instance: Cuba could intervene to stop massive violations of HR in Guantanamo, Mexico could intervene in Texas to prevent discriminatory policies against Mexican nationals, China could intervene in Malaysia to stop massive discrimination of Chinese nationals there, Russia could intervene in Georgia to stop Georgia’s attempts to ‘invade’ border regions inhabited by Russians or other nationalities that would prefer not to remain ‘within’ Georgia and so on (these are just hypothetical examples, of course).
If the US do not need the approval of the UNSC to intervene for what they consider ‘good’ reasons, why shouldn’t others be able to do the same? Doesn’t the law work like this? If it is the law for the US, it should be for everybody else!
What is baffling is that US administrations frequently consider themselves above the standards they assume for others, although they would much better work on a real international legal system binding everybody now that they have the authority to do so, and before it is too late. Once others become as powerful as the US are, whether collectively or taken individually, the bad example provided by the US in these decades will bite us all in the back…

8.31.2013
at 3:00 pm EST Guy

Responding to Jordan,
I agree with your argument that it is possible to read U.N. Charter Article 2(4) flexibly such that a limited strike to deter future chemical weapons use would not be against the “territorial integrity” or “political independence” of Syria, or inconsistent with the purposes of the Charter. Theoretically, I agree that the opposition, if recognized as the legitimate government, could provide consent. As I argued, I do think use of a regional organization helps in terms of legitimacy, but under article 53.1 second sentence, a strict reading of the Charter does not allow it to substitute for Security Council action.Response…

Responding to Guillermo,
I recognize that the High Level Panel states what you quote (as do other R2P source documents). It is solely the ICISS formulation that suggests more flexibility (and, yes, that is earlier in date, so under the later in time rule is no doubt of lesser weight). This is where I think the realm of legality is divorced from morality if we are always waiting for the Permanent Members of the Security Council to do the right thing and act in the face of mass atrocity (which they often do not). I concede that if one is going to utilize a strict constructionist reading of the UN Charter and R2P, then one must allow a million people to perish if faced with a Rwandan genocide, as the world did. This is why I suggest that it is also possible not to take such a strict constructionist reading.

Responding to Guy,
R2P is triggered only to respond to large-scale atrocity crimes – genocide, war crimes, crimes against humanity and ethnic cleansing. The examples he cites seem off point. But, yes, you make a good argument that (as with the use of drones), it is possible that other countries might in the future attempt to utilize precedent set by the U.S., and this clearly needs to be considered.
I am not arguing that the US should be above the standards of international law (I actually would argue to the contrary – that it very much should be bound by the same standards), but that international law may be flexible enough to permit humanitarian intervention in the face of mass atrocity crimes (or that utilizing such intervention would not constitute a “manifest” Charter violation, for example, for purposes of the International Criminal Court’s crime of aggression). To avoid all of these legal difficulties, it undoubtedly would be far preferable to obtain express Security Council authorization, but it is unclear if that is possible. The moral failings here are of those states on the Security Council that have to date blocked any meaningful response to the Syrian government’s actions.Response…

Jennifer: footnote 44 of the 34 U. Pa. J. Int’l L. 431 (2013) article notes that Turkey, France, Saudi Arabia, Bahrain, the United Arab Emirates, Oman, Qatar, Kuwait, the U.K., and the U.S. had recognized the opposiiton as the legitimate leader of the Syrian people by the end of 2012.

8.31.2013
at 6:10 pm EST Jordan

Jennifer,

The only source you cite in defense of unilateral humanitarian intervention is the report issued by ICISS. But I fail to see how that report is relevant: ICISS was an ad hoc committee of 12 individuals acting in a private capacity, not as representative of states. So it is not state practice and does not contribute to opinio juris. Where, then, is the state practice and opinio juris in defense of your position that, notwithstanding the UN Charter, unilateral humanitarian intervention is permissible?

Kevin: there are many actors other than the “state” with formal status in the international legal process (e.g., nations, peoples, tribes, belligerents) and there are those with informal participatory roles. Opinio juris is not controlled by “states” formally or realistically. Even private reports and writings have been used as “evidence” of customary law or opinio juris.
Keven: why would article 2(4) necessarily trump article 56 (which is tied to article 55(c) and the preamble of the Charter as well as the purposes set forth in article 1)? The purposes of the Charter are varied. One purpose expressly relates to universal respect for an observance of human rights and U.N. organ obligations with respect threto (in article 55(c)) and state obligations (in article 56).
And, moreover, why would application of article 2(4) not involve attention to human rights purposes and obligations of U.N. organs and states when article 2(4) expressly proscribes use of force inconsistent with the purposes of the Charter? Why would Jennifer’s and my read of article 2(4) be textually or in a policy-serving way be completely unacceptable given the fact that per the text of article 2(4) only three types of use of force are proscribed?
Why would the apparent consent of the SNC as the legitimate representative o the Syrian people for at least limited strikes not be relevant with respect to each of the categories addressed in article 2(4) of the Charter?

9.01.2013
at 12:42 pm EST Jordan

Dear Jennifer,

“I concede that if one is going to utilize a strict constructionist reading of the UN Charter and R2P, then one must allow a million people to perish if faced with a Rwandan genocide, as the world did. This is why I suggest that it is also possible not to take such a strict constructionist reading.”
This is a compelling moral argument for intervention but definitely not a legal one. You cannot adduce evidence about the existence of R2P without Security Concil authorization. Wouldn’t it be more intellectually honest to simply say that as a moral being you want it to be lawful de lege ferenda and would even support the breach of international law if that would save human lives? Why do you have to couch moral arguments as legal ones?

Thanks Jennifer to you and your colleagues for the insightful discussion of this excruciating decision. I hope the Congressional debate and accompanying public discussion is as illuminating as the OJ symposium and discussion on Lawfare.
I’m relieved that the President is involving Congress, and note that he’s preserved room for himself and his successors to use force without Congressional authority, so it seems that claims of Constitutional surrender of executive authority are not warranted. I am very skeptical that as a policy matter force is the right option, and hope the debate will include careful examination of whether force will save lives or risk causing even greater loss of life.
My substantive reason for posting is to gently contest the idea that there is not a basis for humanitarian intervention without SC approval under international law. Caveats first–I agree this is a very disfavored position, that it is opposed by the Charter’s express limits on the use of force, and that HI as a right is undefined and subject to abuse that could swallow the rules against use of force.
Having said those things, the preamble to the Charter states that the purpose for the Charter and the UN itself is to “protect future generations from the scourge of war.” And many instruments of PIL are intended to do just that. Can it be said that the animating purpose of the UN, the Charter, and much of PIL is to protect innocents, and in view of the Gestalt of PIL as making the protection of innocents a primary goal, there is an interstitial right of HI in situations of egregious, cataclysmic violence against civilians?
Back to caveats–the first being I’m sure this is probably not right. The second is that, even if you borrowed the R2P principles as conditions, they’re not satisfied in Syria for the reasons Charli Carpenter explained so well. The third is that the PIL framework of limits and requiring SC approval, while an obstacle to action in some compelling situations, has helped prevent great power wars which would have led to tremendous loss of life.
But before we slam dunk HI, ought we consider the policy implications of a PIL framework that would prevent action against a Rwanda scope genocide on the dissent of a single SC member? Is a non-SC approved use of force for humanitarian reasons never permissible under IL?
Again, I’m not endorsing force in Syria, but am concerned with precedent in situations where intervention might be the right thing to do.
Charlie

9.01.2013
at 6:54 pm EST Charlie Martel

Hi all,
I log back on to find that I think Jordan has responded to Kevin (maybe or maybe not to Kevin’s satisfaction). Tempting as Tomas’ point is, I think I will not concede that, for the arguments that Charlie makes above. As I have suggested, I find that the law on R2P has not evolved to a very satisfying place, with the later formulations (post-ICISS) always requiring Security Council consent. So the question is, if we are really faced with a Rwandan genocide, as Charlie posits, is it an acceptable legal response to do nothing? Put another way – is there perhaps still some penumbral vestiges of the humanitarian intervention precedent (that I would argue the Kosovo intervention represented) that still remain valid? Or we do say that a strict reading of the Charter trumps the rights of the victims not to be slaughtered? I will not endorse that strict reading — although it is the easier, cleanest legal argument to make. It is also a reading I find divorced from morality. So I am trying to make a legal argument that is in line with a moral position.
My original posting was also motivated by another point (perhaps too subtle), but, under the International Criminal Court’s crime of aggression framework (article 8bis), unless there is a “manifest” Charter violation, we will not have the crime of aggression. The US supported an Understanding at the Kampala Review Conference where the crime was adopted as an amendment to the ICC’s Rome Statute. I thought the US Understanding helpful that something that is true humanitarian intervention (and of course that is exceedingly complex as to what that is) should not be covered by the crime of aggression. By arguing that US action would be in a “grey” area of legality, it would take it out of being a “manifest” Charter violation and therefore not the crime of aggression. Note: this is all quite theoretical because the crime of aggression at the ICC (a) is not activated, and (b) there is a carve-out from ICC jurisdiction for the nationals of non-state parties. But I think it important to consider how the crime of aggression framework will interact with humanitarian intervention, and my point is that humanitarian intervention should not be considered a “manifest” charter violation, and therefore should not be the crime of aggression.

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